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FOIA Litigation Results in Helpful Guidance on Motions Practice Before the BIA

AILA Doc. No. 19053030 | Dated May 22, 2019

The American Immigration Council released key DOJ guidance that may help you if your clients are facing removal from the United States. These materials—publicly available for the first time—address motions before the Board of Immigration Appeals (BIA), including stays of removal.

Motions to stay removal are critical in preventing the devastating—and at times life-threatening—consequences of unlawful or unjust deportations. Yet, until now, the government has failed to disclose how it decides these motions.

The documents released by the American Immigration Council are a practical guide on how the BIA adjudicates stay motions as well as other motions. They include training materials and internal guidance that provides insight into how the BIA operates generally. In particular, the materials include the BIA's Standard Operating Procedures on Adjudicating Emergency Stays, the most current set of BIA protocols governing stay motions.

The American Immigration Council obtained these documents through a Freedom of Information Act (FOIA) lawsuit it filed with the Kathryn O. Greenberg Immigration Justice Clinic at the Benjamin Cardozo School of Law.

Internal Executive Office for Immigration Review (EOIR) manual on adjudicating emergency stays of removal, including guidance on how emergency stay motions are screened and processed by BIA staff, and how parties are notified of stay decisions. Although the document is labelled draft, the agency confirmed that this is the operative version of the manual as of May 2019.